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Will Justices Let Trump Fire SEC Judges?

By George Khoury, Esq. | Last updated on

SCOTUS heard oral arguments this week, in the closely watched Lucia v. SEC case. The petitioner is seeking to invalidate a judgment against him affirmed by an SEC administrative law judge by claiming that the SEC overstepped when it hired ALJs because they should have been appointed by the president or SEC pursuant to the president's constitutional appointment power.

Though Justice Gorsuch only seemed concerned with what sort of remedy the petitioner sought, several other justices seemed rather curious about how invalidating the SEC's current selection process for judges would affect those judges' impartiality and independence. Another big issue that the Court seemed to briskly skirt involved the president's ability not just to hire, but also the power to fire, agency appointees.

Federal Apprentice: "Your Fired"

Curiously, the president's administration changed the official stance on this issue last year. Rather than backing the SEC, the Trump administration actually supported the proposition to not only invalidate the current ALJ selection process, but any executive agency officer should be subject to removal by the president. Given the tag line that the reality TV viewing public enjoyed hearing from the president, this argument actually seems a little too apropos, if any argument ever could be considered such.

Judges of Judicial Independence

One issue that seemed important to justices on both sides of the partisan divide involved the issue of judicial independence. The SEC ALJs, like many other administrative judges for other agencies, are hired through the civil service system, which provides certain protections to ensure the ALJs can make decisions insulated from political pressures. However, Justice Roberts voiced his concerns over the lack of accountability that comes from the civil service merit selection rather than the appointment process.

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